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FRANK SCHMECK v. GENERAL BATTERY CORPORATION AND COMMONWEALTH PENNSYLVANIA (01/23/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 23, 1980.

FRANK SCHMECK, JR., APPELLANT
v.
GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. SHERRIDAN E. LOEB, APPELLANT V. GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. WALTER PAUL, APPELLANT V. GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. HOWARD W. GARBER, APPELLANT V. GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. KENNETH HAAS, APPELLANT V. GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES

Appeals from the Orders of the Court of Common Pleas of Bucks County in cases of Frank Schmeck, Jr. v. General Battery Corporation and Commonwealth of Pennsylvania, No. 73 April Term, 1977; Sherridan E. Loeb v. General Battery Corporation and Commonwealth of Pennsylvania, No. 72 April Term, 1977; Walter Paul v. General Battery Corporation and Commonwealth of Pennsylvania, No. 212 March Term, 1977; Howard W. Garber v. General Battery Corporation and Commonwealth of Pennsylvania, No. 211 March Term, 1977; and Kenneth Haas v. General Battery Corporation and Commonwealth of Pennsylvania, No. 71 April Term, 1977.

COUNSEL

Joseph Lurie, of counsel, Galfand, Berger, Senesky, Lurie & March, for petitioners.

Richard A. Bausher, with him Stevens & Lee, for General Battery Corporation, respondent.

Sandra S. Christianson, Assistant Attorney General, for respondent.

Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge DiSalle concurs in result only. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Macphail

[ 49 Pa. Commw. Page 17]

This is an appeal from an opinion and order of the Court of Common Pleas of Berks County affirming the Workmen's Compensation Appeal Board (Board), thereby denying benefits to Frank Schmeck, Jr., Sheridan E. Loeb, Walter R. Paul, Howard Garber and Kenneth A. Haas (Claimants).

All of the individual Claimants were employees of General Battery Corporation (Employer), a manufacturer of lead-lined batteries. Claimants had worked in areas of lead exposure for periods varying from 4 1/2 to 21 years. The Employer provided routine physical examinations of employees in lead areas and when employees were found to have a high lead content in their blood after two exposures, they were transferred to non-lead jobs.

Between 1971 and 1972, each of the Claimants in the instant appeal were transferred to non-lead jobs pursuant to Employer's "prevention plan." However, in all but one case, the non-lead employment was at a lower rate of pay.*fn1

After being transferred, each Claimant applied for benefits alleging permanent partial disability due to lead poisoning.*fn2 After hearings, the referee awarded benefits for partial disability, in all cases.

[ 49 Pa. Commw. Page 18]

Appeals were then taken to the Board, and upon review of the evidence, the Board reversed in each case. Thereupon Claimants appealed to the Court of Common Pleas of Berks County. In an opinion and order dated May 17, 1978, Judge Eshelman affirmed the Board's decision and denied benefits. This appeal followed.

Our scope of review in this case, "in the absence of an error of law or violation of constitutional rights, is to determine whether the findings of fact of the Board are supported by substantial evidence, leaving questions of credibility, evidentiary weight and the resolution of conflicts in the testimony to the Board." Cuppett v. Sheesley Supply Co., 30 Pa. Commonwealth Ct. 584, 588, 374 A.2d 757, 758 (1977).

Initially Claimants argue that they have sustained an injury which is compensable under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. We agree with Judge Eshelman's opinion on this issue that "we deal in the instant case with the Occupational Disease Act where 'disability' rather than 'injury' is the event fixing liability." 70 Berks 288 (1978) (emphasis added). Therefore, we must conclude that any further discussion of the issue of compensation for injury under the Pennsylvania Workmen's Compensation Act would be pointless.

Claimants' second argument is that disability is synonymous with loss of earning power and that since Claimants suffered a loss of earning power (with one exception previously noted), they have suffered a disability as that term is defined in the Act. It is true

[ 49 Pa. Commw. Page 19]

    that our Court has held that disability is synonymous with loss of earning power. Borough of Catawissa v. Shultz, 9 Pa. Commonwealth Ct. 546, 308 A.2d 633 (1973). However, Judge Blatt's opinion in Gallo v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 599, 377 A.2d 1014 (1977) is instructive. In Gallo our Court, when presented with a similar factual situation, held that "the loss of income suffered by a claimant is only one factor in determining the existence of a compensable disability." Gallo, supra at 603, 377 A.2d 1016. In other words, loss of income or loss of earning power are not synonymous with disability unless claimant also suffers from an occupational disease as that term is defined in the Act. Lash v. Workmen's Compensation Appeal Board, 30 Pa. Commonwealth Ct. 124, 372 A.2d 1265 (1977) (allocatur granted No. 373, January Term, 1978). Accordingly, we conclude that loss of income or loss of earning power without proof that the claimant also suffers from an occupational disease is not a disability.

Definitely, the most difficult question presented by this appeal is whether the Board correctly determined that the Claimants are not entitled to compensation because they have failed to prove disability caused by an occupational disease.

In a matter governed by the Occupational Disease Act, the Board is the ultimate fact finder and may disregard findings of fact of the referee. Commonwealth v. Brown, 16 Pa. Commonwealth Ct. 148, 329 A.2d 541 (1974). The question of whether Claimants suffer from the affliction of lead poisoning is a factual determination solely within the province of the Board.

We were presented with an identical question in Lash v. Workmen's Compensation Appeal Board, supra. In Lash this Court affirmed the referee and the Board, where both found that General Battery employees who had been transferred to lower paying jobs

[ 49 Pa. Commw. Page 20]

    as a result of high lead counts in their blood had failed to prove an occupational disease or a disability.

The occupational disease which Claimants claim they suffer from, i.e., lead poisoning, is clearly one of the enumerated diseases found in Section 108(a) of the Act, 77 P.S. § 1208(a). In order to show disability, however, Claimants bear the burden of proving that they suffer from that disease. While we are not qualified to undertake to define in medical terms what constitutes lead poisoning, we are compelled to agree with the testimony of Claimants' own medical witness (which is the only medical evidence before us in the instant cases) that more than high blood lead counts are necessary to establish the existence of the disease.*fn3 In the instant cases, the Board pointed out the necessity of distinguishing between one who suffers from lead poisoning and one who is an absorber of lead. As the Board noted, the Act provides compensation only for those who suffer from disability caused by one of the enumerated diseases; it does not provide benefits for those susceptible to contracting the disease. In each of the cases now before us, the medical witness stated that the Claimant does not suffer from lead poisoning although each of them is prone to absorb lead. Under such circumstances, the Board not only could but was obligated to reverse the referee.

[ 49 Pa. Commw. Page 21]

Accordingly, we affirm.

Judge DiSalle concurs in result only.

Order

And Now, this 23rd day of January, 1980 the order of the Court of Common Pleas of Berks County dated May 17, 1978 is hereby affirmed.

This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Disposition

Affirmed.


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